June 9th, 2015

NY Top Court: It’s Still OK To Be Negligent With Your Dog

Not the dog in the lawsuit, but mine. Does Tucker look like he would hurt anyone? Or obey a command to come?

Not the dog in the lawsuit, but mine. Does Tucker look like he would hurt anyone? Or even obey a command to come?

It wasn’t the dog’s fault. His owner called for him in Central Park, and he bolted across the road exactly as commanded. And into the path of a bicyclist. The animal was not dangerous, but rather, was directed to do something that was.

New York has had a long standing rule that held that, for pets, one could only bring a lawsuit under strict liability, if the pet had a known vicious propensity (see: Bard v. Jahnke). Hence the phrase, every dog gets one bite. We didn’t have a common law cause of action based on negligence.

It was all about whether or not that bite Fido took could have been reasonably anticipated. And if Fido had that propensity (either by bite or other aggressive behavior), the owner was responsible no matter what.

Would this case change things? Our high court had already ruled in Hastings v. Suave that the owner of a cow that innocently strays past a dilapidated fence into the road could be held liable. Why not a dog? This isn’t about the animal, but about the owner.

I discussed back in 2013 how this case — alleging only negligence and not strict liability — was headed to the Court of Appeals when a divided panel of our Appellate Division (First Department) ruled that the case could go forward. It was time, I guessed, for our archaic and unfair law to be updated.

At that time I ventured a prediction:

My prediction: New York’s long-held policy of granting immunity to animal owners for their own negligence (as opposed to the animal’s viciousness) will fall by the wayside as illogical.  Immunity for negligence makes no sense at all, and is something that only a legislature can grant.

I was wrong. New York’s Court of Appeals today re-affirmed in Doerr v. Goldsmith that owners were still free to be negligent with their pets; owners get immunity from negligence.

The opinion is quite short. But there is a lengthy concurrence and two separate dissents.

Judge Abdus-Salaam thought it necessary, in concurring, to discuss at length the two cases before the court (the other, Dubinsky v. Lockhart, also dealt with loose dogs hitting a bicyclist, and alleged both negligence and strict liability). She started with our jurisprudence going back 200 years, when bites were the only issue in a rural society where the fastest mode of travel was a horse.

But despite her lengthy analysis — which includes the history of our pets being able to roam free on the streets and the expectations of others that this would occur — her opinion did not speak for the majority. She argues, unconvincingly in my opinion, that:

“[t]he average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner’s premises and may harm others depending on the disposition of the pet and the degree of training it has received”

Frankly, if I were walking on the streets of the city, I would not expect an unrestrained pet. We have leash laws, you know.  It’s like saying you should expect drunk drivers on the road, and therefore there is no liability for the drunk running the light because you should expect drunk drivers.

And so we get argument for a one-size-fits-all rule regardless of whether you are in the nation’s biggest city or one of our many rural hamlets.

In arguing for the retention of the easy-to-follow rule of granting immunity that comes from our prior agrarian society, she writes:

In general, we do not cast aside precedent unless it has become unworkable, increasingly irrational and/or increasingly unjust over time.

Well, “unjust” would certainly seem to fit these circumstances, but I’m not on the bench.

Chief Judge Lippman, in dissent, notes this about the existing rule that he fought to change:

…application of the rule in this instance would serve only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident.

Yep, that is it, immunity for tortfeasors. A concept that is generally foreign to our common law jurisprudence.

And this, regarding the defendant-owner deliberately setting in motion the chain of events:

…people expend significant amounts of time and effort, and sometimes go to great expense, in an effort to train their dogs to be obedient.  When those efforts are successful and the dog acts according to the owner’s command, that is not a vicious propensity, but should not necessarily result in the owner’s immunity from liability.

Judge Fahey also dissented, and noted that our common law jurisprudence is pretty good, that there is a long line of cases going back over 100 years to support a negligence cause of action against dogs, and that there doesn’t need to be this exception:

We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. I cannot join the Court’s memorandum opinion and I disagree with the analysis put forward in the concurring opinion

So this is the rule in New York: If a farm animal wanders off because of the negligence of the owner, the owner can be held negligent. But if the animal is a pet, the answer is the opposite.

Welcome to New York.


October 3rd, 2013

Dog Case Heading to NY’s Top Court


This is my pooch, not the one in the collision in this case. But he makes for great blog artwork, no?

Earlier this year I wrote about a change under hoof in New York about animals causing injury. It has long been held that animal owners could only be liable for their animals’ acts if there was a “known vicious propensity,” that being some type of aggressive or threatening behavior. Hence the phrase, “every dog gets one free bite.”

Under those circumstances the owner was strictly liable for injuries, and there was no cause of action for negligence.

But the Court of Appeals cracked that door open earlier this year in Hastings v. Suave, holding in a case where a cow wandered through a poorly kept fence into a road where it was hit, that a cause of action could exist for negligence. This had nothing at all to do with the animal’s viciousness or not, but was solely based on the conduct of the owner.

The court also held that the matter of dogs, cats and other domestic pets was not before it, and would await another day.

That day now seems on the imminent horizon, as today the Appellate Division First Department ruled in Doerr v. Goldsmith, a case where two people on opposite sides of the road in Central Park were playing with a dog. One called the dog and the other released it. A bicyclist was riding in the road and couldn’t avoid impact.

As neatly summarized by the majority opinion:

Plaintiff testified that Goldsmith “was holding a dog in a manner that he was almost hugging the dog, so he had his arm around the chest and the neck of the dog” and that Smith was “slightly bending down and clapping her hands on her upper thighs.” Interpreting Smith’s actions to be a signal to the dog (which was hers) to come to her, plaintiff screamed out, “Watch your dog.” Plaintiff then saw the dog in the middle of the road, but was unable to avoid colliding with it and being propelled off the bicycle. Defendants do not materially dispute plaintiff’s recounting of the incident. Plaintiff seeks to recover against defendants on a theory of negligence. He does not claim that the dog’s actions were a result of any vicious propensities of which defendants may have been aware.

Everybody agrees, it ain’t the fault of the dog, even though courts and lawyers eschew words such as “ain’t.”

Given New York’s historic position on these cases, the defendants moved for summary judgment saying they were immune from anything they did because New York doesn’t have a negligence cause of action. The lower court disagreed and denied the motion. Defendants’ appealed and won, but then the Court of Appeals ruled in the cow case, and so this dog case was re-visted by the appellate court.

The First Department has now reversed itself and allowed the matter to stand, based on the logic in the cow case.

The dissent disagrees, writing that the Court of Appeals didn’t rule on this, having only ruled about farm animals and specifically left dog and pet cases for another day. Leave to appeal should be granted, the dissenters argued, and if the Court of Appeals wants to change the law that is its business.

And so, with a split decision, this case will no doubt go to the Court of Appeals.

My prediction: New York’s long-held policy of granting immunity to animal owners for their own negligence (as opposed to the animal’s viciousness) will fall by the wayside as illogical.  Immunity for negligence makes no sense at all, and is something that only a legislature can grant.

Lastly, a  hat tip to attorney Gregory Bagen for taking this case given the state of the law when incident occurred. He took on a matter that he knew, to be successful, would take years of appellate work and expense just to get to the jury. Well done.


December 13th, 2012

Dog Bites Breast; Does Auto Insurance Cover It?

My dog; not the offending one. I needed art. He posed.

I know what you’re thinking; you think I put “bites breast” in the subject heading just to grab your attention. Nah, would I do that?

In fact, a dog inside of a car poked its snout through an open window and did bite the breast of a passing woman. And I presume it hurt quite a bit because there is money up on the table and an interesting judicial decision to go with it.

The issue came to a head this week in Allstate v. Reyes, in Dutchess County.  The car, with the dog inside and the window partly open, was parked in a “No Parking” zone when the woman was bitten.   The owner of the car, through his insurance company, ponied up the $25,000 policy that he had.

But the injuries — not listed in the decision — were obviously pretty substantial as the bitten woman then filed for arbitration against her own insurance company under it under-insured motorist claim provision. This is an endorsement on your policy that comes into play if the car that smashed into you (which is what usually happens) was carrying insufficient insurance for your injuries.

But this wasn’t a car accident, it was a dog bite. Did this injury occur arise out of the ownership, maintenance or use of the under-insured vehicle?

Want to take a guess? I’ll wait…

And the answer is, according to Dutchess County Justice James Pagones, yes. It did arise out of the use of the vehicle. Why? Because:

…the use of a vehicle to transport a household pet is now commonplace and the dog would not have been close enough to bite the respondent’s right breast without the use of [the owner’s] vehicle to haul the dog and [the owner’s] act of permitting the rear window to remain open. It is not necessary that the use of the vehicle be the proximate cause of the respondent’s injuries. Rather, this court finds that the use of the vehicle was a proximate cause of the respondent’s injuries. [emphasis in original]

Justice Pagones made a point of italicizing that the conduct did not have to be the proximate cause, it only needs to be a proximate cause. And that is because an injury might result from multiple caues.

One interesting twist on this case is this: If this was just a dog bite case, the concept of negligence wouldn’t exist. In New York, we have strict liability for animals with a known dangerous propensity. This is part of the infamous concept of “one free bite” — a concept that isn’t 100% accurate — that gives an owner notice of danger. So if there was no additional insurance through the under-insured endorsement, it would be impossible to obtain a judgment against the dog/car owner for simply the dog bite unless you could prove the dog had a nasty history.

Will you ever see this fact pattern again? Hell no. But I appreciate good judicial reasoning in an off-beat case.


June 7th, 2012

The $30M Dog Bite (and Rosemarie Arnold)

Rosemarie ArnoldI was pissed when I saw the article in the paper: A doctor walked her dog in a school playground where it wasn’t supposed to be and attacked a child, biting off part of his earlobe. The kid (through his parents) sued the doc. For $30,000,000.

Yeah, I was mad. But not at the doctor and not at the dog. I was mad at the lawyer, Rosemarie Arnold, who belches on one of her websites that she is the “Queen of Torts.”

Really? The Queen? Well, let’s see about that, shall we?

Wouldn’t the “Queen of Torts” have the fundamental knowledge that, when starting a personal injury lawsuit in New York, you are not allowed to put in an ad damnum clause? That’s the part where you state an actual amount of money. The Legislature killed that idiotic provision back in 2003. As Walter Olson noted at the time on Overlawyered, the measure enjoyed “widespread support from among both defense interests … and the plaintiffs’ bar, which is perennially embarrassed by news items…”

That law was amended because it is, most often, impossible to know the extent of an actual injury soon after it occurs, because the injury has not stabilized and it is too difficult to predict the future at that early point in time. Will the person need one surgery or five? Will the pain resolve itself in six months or not?

As a result of this problem, some lawyers would put crazy numbers in the complaint “just in case,” so that they would not be precluded later if the client’s health went downhill. At the same time, it was grossly unfair to the defendant, as newspapers loved to put this stupidity in headlines. This was particularly true in medical malpractice cases.

So the old law was, thankfully, changed by the Legislature.

Which brings us back to Rosemarie Arnold and her claim on behalf of the child that he suffered a $30M injury to his ear. There are only two reasons for Ms. Arnold to do this:

1.  The Queen of Torts is actually ignorant of the law; or

2.  Rosmarie Arnold willfully elected to ignore the law, in the hunt for headlines, thereby raising ethical issues about her willfully ignoring the law.

Neither of these scenarios is good for her, as one goes to the issue of ignorance and the other to the issue of ethics. Pick your poison.

Back in 2007, during my virgin year as a blogger, I first wrote about this issue. It’s time to expand on it, thanks to Rosmarie Arnold.

When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to  measure what is fair and reasonable under the circumstances and receive just compensation.

Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she  has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.

Perhaps the publicity she got from the suit was good for Ms. Arnold, but it was detrimental to the cause of civil justice. As is often the case, the bad conduct of a few people in a group taints the rest in the eyes of the public. There isn’t any group that wants to see its own misbehaving and damaging the reputation of the rest.

And on the cause of civil justice, since I’m on the topic, it’s worth noting that the self-proclaimed Queen of Torts isn’t even a member of the New York State Trial Lawyers Association, the premier bar association in the state that fights in Albany to protect the civil justice system from those who seek to damage it. Some Queen.

Frankly, I wouldn’t mind seeing this taken up by a judge or ethics committee.

I emailed Ms. Arnold using the form on her website two days ago, seeking comment, and no one got back to me.


April 9th, 2012

A Cow Walks Into the Road…(Update x2)

I don’t deal too often with animal law at this joint, be we make an exception today. Why? Because an intermediate  appellate court has written that it doesn’t like the decision it was forced to render  and asked the state’s top court for a reversal. And when an appellate court asks to have itself reversed, I find that kinda interesting.

Facts: A cow wanders into the road. The cow causes an accident. Can the cow’s owner be successfully sued for negligently allowing said cow to wander?

Answer: No, there is no liability. Why? Because New York’s law of animals is such that there is no cause of action for negligence. The only actions that can successfully be brought are when an animal has a known vicious propensity, and if the animal has that, then there is strict liability regardless of whether the owner did anything wrong.

But a unanimous Appellate Division (Third Department) said that rule sucks in Hastings v. Suave. OK, maybe “sucks” isn’t exactly what the court wrote. But the vicious propensity rule generally comes up with household pets, notably dogs, and not farm animals, and the court doesn’t think it should apply in the farm animal setting. Acknowledging that they had no choice but to dismiss the case under current New York law, Justice Michael Kavanagh, wrote for the court that “we must note our discomfort with this rule of law as it applies to these facts — and with this result.”

Differentiating the case from those regarding household pets, Justice Kavanagh went on to say:

The need to maintain control over such a large animal is obvious, and the risk that exists if it is allowed to roam unattended onto a public street is self-evident and not created because the animal has a vicious or abnormal propensity. Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on farm property and,instead, allowed it to wander unattended onto the adjacent highway in the middle of the night, causing this accident.The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it. For this reason, we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused. However, it is not for this Court to alter this rule and, while it is in place, we are obligated to enforce it.

And that, my friends, is what is known as an invitation to the plaintiff to move for leave to appeal to the Court of Appeals. Given the unassailable logic of the court, I think the chances of a change in the law are pretty good.

Update: Leave to appeal to the Court of Appeals was granted June 6, 2012. Oral argument is scheduled for March 21, 2013.

Update #2: Reversed, May 2, 2013. The Court of Appeals breaks new ground in holding that negligence by an owner can be the basis of liability for farm animals, and says that it could apply the same rules to household pets in the future in an appropriate case:

To apply the rule of Bard—that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463)—in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in *126 Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.